Rice v. Gibbs

Decision Date17 April 1894
Docket Number4013
CourtNebraska Supreme Court

REHEARING of case reported in 33 Neb. 460.


Marston & Nevius and T. M. Stuart, for appellant.

Calkins & Pratt, contra.



This was an action for the specific performance of a contract for the sale of land. The action was brought by an assignee of the vendee in the contract relied upon. Upon a consideration of the case this court reached the conclusion that the decree of the district court dismissing the case was erroneous reversed that decree, and ordered a decree in accordance with the prayer of the petition. Subsequently a rehearing was allowed. The former opinion is found in 33 Neb. 460, 50 N.W 436, where the pleadings and decree are set out, and where the general question of the assignability of contracts for the sale of land in the nature of options is discussed at length.

Upon a reconsideration of the case we are satisfied that upon the former hearing the opinion was based upon too broad a question and that the questions which should control the decision were not there considered. If the former opinion be consulted, it will be found that among the conditions of the contract relied upon, which was entered into by the defendant Gibbs as vendor and one Archibald as vendee, were these: That within the time limited by the contract the vendee should declare his option to take the property, and that a conveyance should be made to him upon the vendor's being requested in writing; that $ 1,500 in cash should be paid upon execution of the deed, $ 1,000 in one year and $ 1,000 in two years from the date of the deed, with interest at ten per cent on deferred payments. The contract concluded with the following sentence: "It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators, and assigns of the respective parties hereto." The precise point in the construction of this contract is not whether it is in its nature assignable so that, its conditions being performed, an assignee might enforce it, but whether or not the plaintiff in this case as assignee did perform or tender a performance of those conditions. In the enforcement specifically of contracts courts of equity usually undertake simply to enforce the contract as made by the parties, not to compel the performance of acts upon other conditions than those agreed upon by the parties. If the contract in this case had provided for a payment of the entire purchase price in cash upon the execution of the deed, we would have no doubt that the assignee might, upon tender of the purchase money, compel the execution of the deed to him. But the contract did not contemplate such a payment. It expressly provided that $ 1,000 should be paid in one year and $ 1,000 in two years after the date of the deed, without providing in what manner, if at all, these deferred payments should be secured.

In Arkansas Smelting Co. v. Belden Mining Co., 127 U.S 379, 32 L.Ed. 246, 8 S.Ct. 1308, it was said: "Everyone has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman, 'You have the right to the benefit you anticipate from the character, credit, and substance...

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